• Probation rights in india

I m a specialist doctor with three years experience. I joined a trust run private missionary hospital. after one year of probation they terminated me verbally pointing out minor tasks as grounds for non performance. No communication of my alleged underperformance or warning before termination. Appointment letter states one month notice either side clause . Also states one year probation case review after a year. I m seven months pregnant . Feel they malign me to avoid impending maternity benefit. Feel like airing. What might be the result of litigation. How to proceed
Asked 6 months ago in Labour from Ghaziabad, Uttar Pradesh
If you feel that you have been meted out with injustice you may very well stand up against it and fight for your cause. 
Did they terminate your services by handing you a termination letter?, if so what was the reason stated in it?
You should first issue a legal notice demanding justice and reinstatement.
Subsequently you may file a writ petition before high court for reinstatement with full benefits.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1) your probation period was for period of one year .

2) at the end of one year probation period it is for management to decide whether to employ you on permanent basis or not 

3) at the end of the  maximum  probationary  period there will  be a  deemed confirmation  of  the employee unless Rules provide  to  the contrary.  

4) since your appointment letter provides for review after one year you have to be intimated in writing of your appraisal by the management 

5) . it is necessary to peruse your appointment letter .to advise further . contact a local lawyer 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
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To all your subsequent questions the answer is yes.
You may issue a legal notice even before the expiration of notice period.
You can demand the reasons for sudden termination and the clause under which your services have been terminated.
Dont forego your rights for any reason.
Consult a local labor law practicing lawyer for further issues.
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
In a case of this nature job contract or offer letter is key to determine whether you have any actionable claim against the termination or not. Probation is just like a training period during which performance of an employee is test checked to see if he is deserving of being inducted permanently. So, he can be terminated at any time during probation, but in conformity with the terms and conditions stipulated in his appointment letter about probation. The termination letter has to be seen before forming an opinion.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
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1)  Employment in private sector is governed by the terms and
conditions of employment, and unless the termination is shown to be
violation of the terms and conditions of employment, it cannot be said that
the termination is illegal.

2) if the contract of employment  provides for one month’s notice, then, the maximum entitlement of damages  of an employee who alleges illegal termination is one month’s pay. 

3) yours is contract of personal service . you cannot file a suit seeking continuation of services with  consequential benefits of pay etc and dis entitlement of the employer to
terminate the services . at most you are entitled to damages being one month pay 

4)  Supreme Court in the case of
Binny Ltd. & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657 and which
holds that public policy principles or administrative law principles do not
apply to private employment. 

5)In case of private employment,
the employers are fully justified in taking steps for termination of services, if
it finds that the employee is not upto the mark. Principles applicable in
public law domain do not apply with respect to employees in private
employment. Employment in private sector is governed by the terms and
conditions of employment, and unless the termination is shown to be
violation of the terms and conditions of employment, it cannot be said that
the termination is illegal. 

6) even if there is illegal termination of services,
it is not possible to grant damages as claimed inasmuch as the principle of
mitigation of damages squarely applies. As per this principle of mitigation
of damages enshrined in Section 73 of the Contract Act, 1872 even if an 
employee is illegally terminated from services, he cannot sit at home and he
must take sufficient steps to procure alternative employment. 

7)even presuming there was
breach of contract, at best reasonable damages can be granted and once there
is a clause for termination of services by one month’s notice, it can only be
one month’s notice which can be treated as reasonable damages inasmuch as
parties understood the period for obtaining of an alternative employment as a
one month’s notice period
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
Dear Querist
if in your appointment letter is is mention that one month notice from either side, then they are bound to issue a notice to you before terminate your services or they will pay an amount in lieu of Notice period.

They can not issue a letter of termination suddenly without either notice or pay.

you may issue a legal notice to them for their illegal acts and claim compensation for this unfair practice and mental harassment.

Feel Free to Call
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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An employee on probation can do little if he is not confirmed after probation as the management issues a simple notice stating that his services are not confirmed. You should show the contract to a lawyer to get clear opinion on the scope and nature of your legal remedy, if any.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1) your probation period was for period of one year only.

2) management has terminated your services on expiry of one year 


3) you cannot move court and seek stay restraining company from terminating your services

4) you can only claim damages from the employer for illegal termination of service 
Ajay Sethi
Advocate, Mumbai
23367 Answers
1224 Consultations
5.0 on 5.0
My appointment letter as I said states one month notice from either side. Also states one year probation period. Your case will be reviewed after one year and decision informed in writing.this is what it states. It does not state without any reason. Do employers in India have a right to announce sudden termination based on underperformance without proof or any prior feedback given in a whole year.

The employers  are same across the globe and an Indian employer cannot be an exemption.
You can challenge their move by first issuing a legal notice demanding proper reason for terminating your services as the termination without sufficient or valid reason is agaisnt the natural justice as well as contrary to the labor laws and protection of employees rights  and interests. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
If I allege that maternity discrimination is cause of termination at the end of probation, because it was sudden and arbitrary, how shall it be viewed as per law?

Your understanding is wrong.  
Nobody is empowered to do anything against natural justice, either the private employer of the government.
If you feel there is some injustice done to you, he doors of courts are open and you can register your grievances seeking respite and remedy.
Have you tried to consult a local lawyer on this or still keep grumbling sitting in the corner of room?
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
Look principles of natural justice come into picture only of there is an accusation and an opportunity is to be granted, whereas the employer can after the expiry of probation period refuse to confirm an employee. In the letter issued to you there, as you say, are no accusations. So there is no violation of natural justice principles in the first place. Instead of getting yourself entangled in a losing legal battle look for another job/
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0

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